New public procurement regulations

The amended Polish Public Procurement Act entered into force on 28 July 2016. The new law introduces major changes to the public procurement system as regards the evaluation of bids, among other things, and makes it easier for small and medium-sized enterprises to join tender procedures.

The amended act is meant to make the bidding procedure more flexible and simpler, as the EU legislators wish it to be. Essentially, the new piece of legislation transposes EU directives – standard 2014/24/EU and sectoral 2014/25/EU – into the Polish legal system.

Here are the key changes:

Price no longer to be the only criterion

One of the most important changes is the obligation to consider criteria other than price during bid evaluation. The new law prescribes a number of measures to make sure the price is not the decisive factor in awarding a public contract. According to the new rules, the price factor must generally not exceed 60 per cent weight. Non-price factors should account for the remaining 40 per cent. The new law lists sample criteria to be considered during bid evaluation. These include, without limitation: quality, functionality, technical parameters, environmental and social aspects, innovativeness, maintenance, lead time and operating costs.

The contracting entity to require contractors (subcontractors) to conclude employment contracts for work covered by the public contract

The amended act puts more emphasis on non-economic aspects of public procurement. Therefore, under the new regulations, if a task under the public contract involves performance of work in the meaning of the Labour Code, then the contracting entity will require the contractors or subcontractors to sign contracts of employment with the persons performing the task.

More small and medium-sized enterprises to join tenders

The amended regulations give the contracting entity the right to require the contractor to implement the key parts of the contract by himself. This will help to eliminate the problem of enterprises that do not have the necessary resources and only exploit the potential of others. Quite commonly, smaller, usually Polish enterprises, which actually employ workers and have the necessary equipment, are only subcontractors.

The amendment also admits advance payments to a larger extent, which is of particular importance to small and medium-sized enterprises as such payments make it easier for them to obtain funds necessary to implement the public contract.

Moreover, the act allows dividing the public contracts into smaller parts more flexibly.

With the new law enterprises will be better informed about the planned public procurement procedures as the contracting authorities are obliged to publish annual public procurement schedules on their websites.

Less red tape

Under the new act, only the contractor whose bid is the most favourable will be obliged to submit documents confirming eligibility and fulfilment of requirements to take part in the tender. Furthermore, the contracting entity will not be allowed to request documents confirming the contractor's eligibility and fulfilment of requirements to take part in the tender or the selection criteria if the contracting entity already has the documents concerning that contractor or may obtain them from free and public databases.

Legal remedies for public contracts below EU thresholds

According to the amended legislation, if the contract value is lower than EU thresholds, it will be possible to appeal to the National Chamber of Appeal (Krajowa Izba Odwoławcza) against the eligibility criteria for a public procurement procedure and the selection of the most favourable bid. This was impossible before. Moreover, the Head of the Public Procurement Office will issue official rulings on the regulations, which will increase the transparency and consistency of the application of the Public Procurement Act.The amended act overhauls the old public procurement system. It is one of the biggest amendments to the Polish public procurement law ever.

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